Examination of Indian constitution in light of Federal Nature of India

TUSSLE OF INDIAN POLITY, FEDERAL CHARACTERISTIC OF INDIAN POLITICS, COMPARISON BETWEEN FEDERALISM AND UNITARY FORM OF GOVERNMENT, IS INDIA A FEDERAL OR QUASI-FEDERAL STATE?

CONTENT

1.1. INTRODUCTION

1.2. DEFINITION OF FEDERALISM

1.3.  INDIAN CONSTITUTION: A MIXTURE OF FEDERALISM & UNITARY FORM

1.4. INDIAN POLITICAL SYSTEM: QUASI-FEDERAL

1.5. CLASH OF FEDERALISM AND UNITARY FORM

1.6. CONCLUSION

Is India A Federal or Quasi-Federal State?

INTRODUCTION

India has a complex and diversified political, geographical, lingual, cultural structure and yet the one twenty-five crore people live by the identity of being an Indian. 3,287,240 Sq.Km of the geographical area of India, which is divided into 29 states and 7 union territories is named India by virtue of Article 1(1) of the Indian constitution which can be read as “India, that is Bharat, shall be a union of state.”

 Prior to British rule, the Indian subcontinent was abruptly distributed into separate geographical states ruled by different kings. But Britishers started gradually occupying the land and finally put this separated lands into one India and thus when India received independence it became a single country. However, the various distinctive nature of the people and of the lands caused a challenge before the maker of the “Law of the lands” to unite these diverged lands and the people. So, the makers of the constitution incorporated a mixture of federalism as well as the unitary form of governance.

DEFINITION OF FEDERALISM

“Federalism is a system of government in which sovereignty is divided between a central authority and constituent political units such as states or provinces. Thus power is shared between national and provincial governments.”

Indian Constitution: A mixture of Federalism & Unitary form

Indian Constitution has not directly advocated federalism for the governance of the country. However certain features suggest federalism with the primary ingredient of a unitary form of governance of the country.

1. Distribution of power between the union government and state government.

By virtue of the Seventh Schedule, Article 249 of the Indian constitution, the legislative, administrative and executive powers are distributed amongst the union and the states. List-1 of the seventh schedule has prescribed 97 subjects, on which the union government can apply its powers and function accordingly.

List-II is all for state list and the various state governments can frame laws and function accordingly on the 66 different subject matters. List-III is the concurrent list, and both of the union governments, as well as state governments, can make laws and have functions on them. However, when state laws contravened the laws made by the union government on concurrent matters, the union government laws sustain.

  2. The supremacy of the constitution

The federalism of the Indian constitution can be traced through the supremacy of the Indian constitution. The constitution of India is the law of the land and it cannot be wiped out and even if it can be amended, the The basic structure of the constitution is indestructible. In the famous case of "KESAVANANDA BHARATI VS. STATE OF KERELA AIR 1973 SCC 225", it was held by the Supreme court that "There are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the parliament. These principles were commonly termed as Basic Structure."

"Kesavananda Bharati is the case which saved Indian Democracy...."

  3. Rigid yet Flexible Constitution

The Indian constitution lays the laws of the land and it is the source of the country. The constitution advocates a sovereign, democratic and republic country and it provides a framework for the country's utmost soul. But the constitution can be amended as prescribed in Article 368, but subject to the doctrine of the basic structure as guided by the Apex court which is the guardian of the constitution.

  4. Independent Judiciary

Indian judiciary is independent of the legislature and executive function and independent nature of the judiciary upholds the federalism feature in the governance. As the powers are distributed between the center and the states, in matters of disputes between the two , the judiciary works as a mediator. The Apex court of the country is vested with the power of judicial review and the court is assigned to guardian our constitution. The independent judiciary of India is nurtured in the following way.

• The judges of the Supreme court and High court are administered on an oath to perform their duty without fear and favor,affection or hatred or ill will and to protect the constitution. 
• The judges of the Supreme Court and High court are appointed by the president. Their salaries and perquisites are paid out of the consolidated fund of India and cannot be curtailed by the parliament except only in case of financial emergencies under Article 360. 
• The activities of judges cannot be discussed in parliament. The parliament can only add to the power of the court but cannot cut it.

INDIAN POLITICAL SYSTEM: QUASI FEDERAL

Indian political system is quasi federal and it is a composite of federalism and unitary form of government. In the words of K.C. Wheare, “Indian union is a unitary state with subsidiary federal features rather than a federal features rather than a federal state which subsidiary unitary feature.”

1. Strong Centre: In spite of the fact that the powers have been distributed between the centre and the states in the Seventh Schedule, the Constitution concentrates powers more to the centre. In case of laws made in the subject matters of List – III concurrent list, the laws made by the Union overrides the state law. Moreover, in special the Union Government can also make laws on the subject matters enumerated in the state list. 

2. Destructible State: “Indian Federalism is an indestructible Union of Destructible States”. Article 3 of Indian Constitution provides that the Parliament may by law form a new state, increase the area of the state, alter the boundaries or even alter the name of the states and that also by way of simple majority. Hence the Union is more powerful and the states are not completely indestructible. 

3. Single Citizenship: Part – II of the Indian Constitution, from Article 5 to 11 prescribes how citizenship of India can be acquired and from this part it is clear that the Indian Constitution only recognizes single citizenship that is “Citizenship of India”. India does not recognize citizenship of the states separately like other federal countries.

4. Single and flexible Constitution: The Indian Constitution is unique and it is not only a Constitution of the Centre but also of the states. The states are not empowered to frame their own Constitution. At the same time, the Indian Constitution is a flexible one as it is amendable as provided by Article 368, but subject to the Doctrine of Basic Structure.

5. Emergency Provision: A three tier proclamation of emergency by the President of India namely – National Emergency (Article 352), State Emergency (Article 356) and Financial Emergency (Article 360) dilutes the state governments and concentrates powers in the hands of the Centre. Under the emergency situation the federalism disappears and unitary form prevails.

CLASH OF FEDERALISM AND UNITARY FORM

 

The co-existence of unitary form and federal structure in Indian polity has been creating clashes between the Union Government and the state governments from time to time. The Constitution in its Part – X, by insertion of Article 244A by twenty-second amendment in 1969 has also provided for the formation of an autonomous state comprising any or all parts of Tribal areas in Assam. 

Moreover, in the directive principles, there is advocating of panchayats in villages by endeavoring powers on the panchayats. The provisions of panchayats, autonomous state or local state governance are creating scope for federalism.

 As a result there is always possibility of clashes between the Union Government and the State Governments. Due to the co- existence of unitary and federalism structure together, the states may feel that the interference of the Union is unnecessary and such interference is a domination of union over the states.

 But to protect the integrity of the country the supreme control of the Union is unavoidable. Indian federalism is not “indestructible Union of the indestructible states”, rather it is “indestructible union of destructible states”. Thus, Indian federalism is binding threads of this integrate India which is a union of 29 states and 7 union territories. 

In S.R. Bomai Vs. Union of India AIR 1994 SC 1918, this landmark case has great impact of the centre – state relationship. It was held that the presidential proclamation, under Article 356, is not absolute and powers conferred by Article 356 on the President are conditional powers. The presidential proclamation is not immune from judicial review.

Thus India’s Union Government is just like the parental body of 29 states and 7 union territories. The Union must allow the states and union territories to grow in every sphere but it cannot grant sovereignty to any of the states as it is a great threat to the unitary soul of India. The Union can have reasonable interference into the matters of the states if such interference is in national interest. But at the same time unnecessary dominance will create adverse centre – state relationship.

CONCLUSION

India believes in integrity, in fact, integrity is the power of India. If the integrity is uprooted, India would break into hundred pieces. Therefore, the makers of the Constitution tactfully established a quasi federalism form of governance, so that it can harmonize the diverged political entities, separate autonomous districts and put everyone under one roof, yet building separate rooms for its diverged people. So, India’s unitary federalism is like a multistoried building yet under the same roof. 

BIBILIOGRAPHY

1. Gohain, Nabin and Das, Dipen: Bharatiya Sarkar Aru Rajneeti, 3rd Edition, Bidya Bhawan, 2015

2. Kashyap, Subhash C., translated in Assamese by Baruah, Gun: Amar Sangbidhan, 4th Edition, NBT, ISBN: 978-81-237-3438-5, 2014

3. Internet Sources, https://en.m.wikipedia.org,